18-15 193
18-15 193
| Board of Vet. App. | Aug 13, 2021Background
- Veteran served on active duty May 1969–Nov 1971, including service in the Republic of Vietnam.
- Veteran was diagnosed with bladder cancer prior to his death in February 2017; spouse substituted as appellant in the appeal.
- Original RO rating decision denying service connection issued June 2015; appeal advanced to the Board of Veterans' Appeals.
- The National Defense Authorization Act for FY2021 (effective Jan 1, 2021) added bladder cancer to the list of diseases presumptively associated with Agent Orange/herbicide exposure.
- VA conceded exposure to herbicide agents based on Vietnam service; Board applied the new presumptive rule and granted service connection for bladder cancer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for bladder cancer | Bladder cancer should be service connected based on presumed herbicide exposure from Vietnam service | Prior RO denial and lack of in-service diagnosis/nexus precluded service connection (pre-NDAA) | Granted: bladder cancer presumptively service connected due to conceded Vietnam herbicide exposure and NDAA amendment |
Key Cases Cited
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (apply reasonable-doubt rule; resolve approximate balance of evidence for claimant)
- Alemany v. Brown, 9 Vet. App. 518 (1996) (denial requires evidence to preponderate against claim)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (three-element test for service connection)
- Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (inland waterways service can establish herbicide exposure)